Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 72 FSCO A15-008090
BETWEEN:
THIRUCHENTHURAN NAGARAJAH Applicant
and
JEVCO INSURANCE COMPANY Insurer
DECISION ON A MOTION
Before: Arbitrator Marshall Schnapp
Heard: In person at ADR Chambers on March 1, 2017
Appearances: Mr. Thiruchenthuran Nagarajah did not participate Ms. Tanya Annarilli participated for Mr. Thiruchenthuran Nagarajah Ms. Safina Khan participated via telephone for Jevco Insurance Company
Issues:
The Applicant, Mr. Thiruchenthuran Nagarajah, was injured in a motor vehicle accident on December 31, 2014 and sought accident benefits from Jevco Insurance Company (“Jevco”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Motion are:
- Should Bergel, Magence LLP be removed as representatives of record for the Applicant in this Application for Arbitration?
- Should the Applicant`s Application for Arbitration be dismissed?
- Should any party be awarded costs or expenses in this matter?
Result:
- Bergel, Magence LLP is removed as representatives of record for the Applicant in this Application for Arbitration.
- The Applicant’s Application for Arbitration is dismissed.
- The Applicant shall pay to Jevco expenses of $500.00 for these proceedings.
EVIDENCE AND ANALYSIS:
Chronology
A Pre-Hearing discussion was scheduled to procced on December 12, 2016 at ADR Chambers; however, the Applicant was unable to attend as he advised he was in Montreal and could not travel to Toronto due to bad weather.
The Pre-Hearing discussion was then re-scheduled for December 20, 2016 at ADR Chambers. In my letter dated December 12, 2016, I advised the Applicant that should he fail to attend the resumption on December 20, 2016, Jevco would be bringing a Motion to have his Application for Arbitration dismissed with costs.
Prior to the Pre-Hearing scheduled for December 20, 2016, the Applicant advised his representative that he could not attend as he recently injured his leg. On consent, the resumption of the Pre-Hearing was rescheduled for March 1, 2017 at ADR Chambers.
On March 1, 2017, the Applicant did not appear at ADR Chambers and could not be reached by telephone. I was also advised by his representative that they had been unable to contact him.
The Removal of the Representative of Record and the Dismissal
For the reasons that follow, the Order removing Bergel, Magence LLP as representatives of record is granted and the Application for Arbitration is dismissed.
I am satisfied that the Applicant has been given notice of all of the proceedings related to his Application for Arbitration at his last known address, and has chosen not to participate in the process and move his Application for Arbitration forward.
Pursuant to Rule 68.1 of the Dispute Resolution Practice Code (“DPRC”), an adjudicator may dismiss a proceeding without a Hearing where the proceeding is frivolous, vexatious, or is commenced in bad faith. I find, by the Applicant`s actions, that this is what happened in this matter and I am dismissing his Application for Arbitration.
Further, I am satisfied that there has been a material breakdown between the Applicant and Bergel, Magence LLP and thus Bergel, Magence LLP should be removed as Mr. Nagarajah`s representative.
EXPENSES:
Under the Expense Regulation and the DPRC, I am required to consider criteria in determining whether or not to award expenses and the quantum. The relevant criteria in this case are each party's degree of success in the outcome of the proceeding and the conduct of a party that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and Orders.
I am awarding expenses payable to Jevco by the Applicant because his refusal to attend the scheduled Pre-Hearings needlessly delayed this matter.
There has been one unnecessary attendance in person and one unnecessary participation via teleconference, as well as the preparation of a defence to the Application for Arbitration. Given these facts, I am ordering expenses in the amount of $500.00 be payable to Jevco by Mr. Nagarajah.
March 13, 2017
Marshall Schnapp Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 72 FSCO A15-008090
BETWEEN:
THIRUCHENTHURAN NAGARAJAH Applicant
and
JEVCO INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
- Bergel, Magence LLP is removed as representatives of record for the Applicant in this Application for Arbitration.
- The Applicant’s Application for Arbitration is dismissed.
- The Applicant shall pay to Jevco its expenses of these proceedings, in the amount of $500.00.
March 13, 2017
Marshall Schnapp Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.